What’s interesting in the case of Jose Caballero is that the trigger for the 15 years of prison time is not that sex in public itself is such a weighty infraction that a real irrevocable harm has been done to the public. It is instead that the basis for the 15 year term is that under the law he is considered a repeat offender because he had been locked up for drug charges in the past.

Consider that the sentence itself is disproportional to the crime. Even accepting that there is a met threshold of public good to restrict public sex one must wonder why that kind of behavior cannot be dealt with on a citation, or at worse minor misdemeanor basis. There is no threat to others, there is no destruction of other’s property, there may be some claim for the idea of psychic damage or some other intangible, however this is a thin basis to rest the “need” for a felony, much less sex offender registration for two consenting adults.

The other dimension is a question of how our legal system links violations to trigger minimum sentencing and hefty punishments for perceived “repeat” behavior. Arguably one can view the 15 year sentence as a perverse byproduct of the drug war, where laws intended to restrict and control the use of intoxicating substances has now resulted in consequences totally divergent from their intentions. One might ask, why is a drug conviction in any way relevant to public sex? The simply answer is that it isn’t, indeed unless the circumstances were different and the man was perhaps selling crack and high as a kite on a cocktail of drugs coercing the woman into sex there simply is no real relevance of the past drug conviction to the lewd act he was caught committing.